Wicker v Hume
| Jurisdiction | England & Wales |
| Judgment Date | 16 July 1858 |
| Date | 16 July 1858 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 50
House of Lords
Mews' Dig. i. 108; iii. 304, 326, 391, 432; 443, 462, 506; viii. 233, 247, 273; xv. 249, 563, 661, 1221, 1227, 1234. S.C. 28 L.J. Ch. 396; 4 Jur. N.S. 933; and, below, 1 De G. M. and G. 506; 21 L.J. Ch. 406; 16 Jur. 391; 14 Beav. 509. On point (i.) as to effect of grant of probate, adopted in Bradford v. Young, 1884, 26 Ch. D. 667; De Mora v. Concha, 1885-86, 29 Ch. D. 300; 11 A.C. 551 (Concha v. Concha), and In re Patience, 1885, 29 Ch. D. 981; (ii.) as to Mortmain Act, approved in Jex v. M'Kinney, 1889, 14 A.C. 77; and Canterbury (Mayor, etc., of) v. Wyburn (1895), A.C. 89; (iii.) as to charitable bequest, cited in Beaumont v. Oliveira, 1868-69 L.R. 6 Eq. 537; L.R. 4 Ch. 314; (iv.) as to change of domicile, see Moorhouse v. Lord 1863, 10 H.L.C. 283; and Douglas v. Douglas, 1871, L.R. 12 Eq. 617.
Domicile - Probate - Mortmain Act - New South Wales - Practice - "Advancement and Propagation of Education."
WALTER G. WELCKJajfa-Appellamt; |MEPH HUME and other*,-Respondents llJury 1, 8, llpfe, 16, 1858]. [Mews' Dig. i. 108; iii. '304yJ26, 391, 4S2; 443, 462, 506; viii. 233, 247, 273; xv. 249, 563, 661, 1221, 12S7, 1234. - S.C. 28 L.J. Ch. 396; 4 Jur. N.S. 933; and, below, 1 De G. M. and G. 5C6; 21 L.J. Ch. 406; 16 Jur. 391; 14 Beav. 509. On point (i.) as to effect of grant of probate, adopted in Bradford v. Young, 1884, 26 Ch. D. 667; De Mora v. Concha, 1885-86, 29 Ch. D. 300; 11 A.C. 551 (Concha v. Concha), and In re Patience, 1885, 29 Ch. D. 981; (ii.) as to Mortmain Act, approved in Jex v. M'Kinney, 1889, 14 A.C. 77; and Canterbury (Mayor, etc., of) v. Wyburn (1895), A.C. 89; (iii.) as to charitable bequest, cited in Beaumont v. Oliveira, 1868-69 L.R. 6 Eq. 537; L.R. 4 Ch. 314; (iv.) as to' change of domicile, see Moorhouse v. Lord 1863, 10 H.L.C. 283; and Douglas v. Douglas, 1871, L.R. 12 Eq. 617.] Domicile-Probate-Mortmain Act-New South Wales-Practice-" Advancement and Propagation of Education." A will must be executed according to the law of the country where the testator was domiciled at the time of his death. The grant of probate not appealed against, conclusively established that it was so executed. A. was born, in Scotland: when a young man he went to the East Indies, where he remained above 20 years in the Company's service: he then returned to Scotland and lived in Edinburgh, where he put his name on the books of the municipality, married, took a house, entered into business as a partner in a banking-house, and became a member of various societies there established. At the end of a few years he left Edinburgh in anger, the banking business had come to an end, and he took off his name from the books of the municipality and of the various societies, and declared his intention never to return to " Auld Reekie ": he lived in London, first in lodgings, and then in houses hired for different periods, lectured on Oriental literature, and endeavoured thereby to increase the sale of some books which he had written on the Hindostanee language. At the end of some years he went to Paris to avoid 50 WHICKER V. HUME [1858] VII H.L.C., 125, some annoyances in London, but never made any such declarations with respect to London that he had mad with respect to Edinburgh, and he left his works in London, and likewise some ornamental furniture which he desired a friend to keep for him till his " return." He died in Paris, having just before made a will in the English form: Held, that he had lost his Scotch, and obtained an English domicile. [125] The Mortmain Act, 9 Geo. 2, 36, does not extend to New South Wales. The 9 Geo. 4, c. 83, s. 24, refers to the laws regulating the administration of justice in the courts of New South Wales, and not to the general law of the colony. A testator gave to trustees funds to be applied by them " according to their discretion for the advancement and propagation of education and learning all over the world :" Held, that this was a valid charitable bequest, and was not void for uncertainty. John Hay Gilchrist, was born in Edinburgh, in June 1759. In 1775 he went to the West Indies, remained there two years, and then returned to Edinburgh. In 1782 he went to the East Indies and entered into the Company's service. He acted at first as a surgeon; but afterwards devoted himself to the study of the Hindostanee and Persian languages, and was appointed to give lessons in them, to the junior civil servants of the Company. On the establishment of the College of Fort William in Calcutta, he was appointed Professor of Hindostanee there, and held that appointment till 1804, when he resigned it and came to England, his then intention being merely 1 recruit his health. He never returned to India. He received a pension from the Company for past services. In 1804 he presented to George Heriot's Hospital, Edinburgh, the sum of £100 " as a small testimony of gratitude for his education there." He got himself admitted a burgess and guild brother of the city, had his armorial bearings recorded in the office of Lyon. King of Arms, obtained a diploma of the Company of James VI., and in 1804 embarked in the wholesale linen trade at Edinburgh. During all this time, however, his principal actual residence was in the neighbourhood of London. He busied himself about literature, and on the 22nd February 1806, was appointed Professor of Oriental Languages at Haileybury, but resigned that appointment a few [126] months afterwards. Claiming to be connected with the noble Scotch family of Borthwick, he obtained a licence under the sign manual to use the name of Borthwick, in addition to his own, and procured a grant of arms from the Heralds' College, in which he was described as " John Borthwick Gilchrist, of Camberwell, in the county of Surrey, Doctor of Laws, Late Professor of the Hindostanee language in the College of Fort William, at Calcutta." In the latter end of 1806 he went to Edinburgh, enrolled his name on the books of the municipality, and entered into business as a banker, with James Inglis, for 14 years, to commence from 1 January 1807, with a proviso, that either party might dissolve the partnership at the end of the seventh year. In 1808 he married a Scotch lady, and had a residence in Nicholson-square, and became a member of several societies established in Edinburgh. In 1815 the banking partnership, which was not successful, was dissolved, as from the 30th June of that year. In June 1817, on account of some real or supposed affront, he quitted Edinburgh and came to London. In 1818 he again obtained from the East India Company the appointment of professor and lecturer in Hindostanee. These labours in teaching Oriental languages had for their chief object to sell his books on that subject, which had always remained in London. This continued till the 20th June 1825, during the course of which time he wrote letters declaring his intention never to see " Auld Reekie again," and, speaking on occasion of a particular matter which had occurred in Edinburgh, he described it as " a blow which dissolution cannot efface from a conscious retrospective mind, wherever it may wing its flight, and one that impels me to disown and deny my country as a tyrannical stepmother, to whom, since my return after a long absence, I owe nought save the deepest disgust." He sold his house at Edinburgh, and most of his furniture; but brought the rest to London; he likewise removed his [127] name from the books of the municipality and from the various societies of which he had previously become a member. He visited Edinburgh once or twice afterwards during the 51 VII H.L.C., 128 WHICKER V. HUME [1858] life of his mother, and memorialised the sheriff depute and the inhabitants of Nicholson-square to have the name changed into Borthwick-square, but he was unsuccessful in this object, and he never expressed any intention of returning to reside in Edinburgh. In 1826 he took part in establishing the University of London, became a proprietor of shares therein, and accepted the office of professor of Hindostanee to the University, but resigned that office in, 1828, and became a private lecturer on Oriental language. In 1833 he set up in London a newspaper, which failed; and in January 1834 he executed in London, a will according to the English forms. He had in the meantime paid some short visits to the continent, but in May 1834 he went to reside near Paris; and before going, wrote a letter, in which he said his reason for going to the continent was, that he was unwilling prematurely to expose either his wife or himself to those annoyances in the metropolis, where for six months they had both suffered severely in body and mind, also to say nothing of his purse, which his arch enemy was determined to sink to the lowest ebb, to torment him while labouring under a complication, of evils, and one of them a dangerous disease, " when he was very far from having yet escaped, and that to flee from similar visitations in future, was the grand object of his wish, and he had requested his kind helpmate to cross the Channel once more in search of that tranquillity which he could not expect in his own country, while beset as he had been by needy and greedy blood relations, all sighing for his death." In July 1837 he took a residence, with coach-house and stables, at Paris, on lease for three, six, or nine years, [128] determinable on six months' notice given before the expiration of the three or the six years. The lease also contained the following proviso, not to assign " in whole or in part without the consent, in writing, of the lessor. Only in the case of unforeseen events which shall force the lessee to quit Paris, or in another case also unforeseen, the interests of his family, the house may be let conjointly by the lessor and the lessee, the latter remaining responsible for the rent; or even the present lease may be...
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